Chambers USA: America's Leading Lawyers for Business recognizes 7 Smith Pachter McWhorter PLC lawyers and lists practice area groups as leaders in their field in its 2019 edition.
In 1974, the D.C. Circuit adopted a standard requiring a party to show that "substantial competitive harm" would result if records a party submitted to the government were released to the public under the Freedom of Information Act (FOIA)." In an important case decided on June 24, 2019, the U.S. Supreme Court, by a 6-3 vote, discarded the substantial competitive harm test, holding that "where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' within Exemption 4's meaning."
On May 16, 2019, the U.S. Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to add Huawei Technologies Co., Ltd. (Huawei) and its sixty-eight non-U.S. affiliates to the Entity List. Five days later, on May 20, 2019, BIS issued another final rule granting a 90-day Temporary General License (May 20, 2019 through August 19, 2019) for four categories of EAR-regulated transactions involving existing and fully operational networks/systems, handsets made available to the public on or before May 16, 2019, and 5G standardization. China countered by furious rhetoric and threats of counter measures including an “Unreliable Entity List” targeting persons and companies stopping or disrupting supply to Chinese companies like Huawei “for non-commercial reasons.” This article discusses the risks U.S. exporters may face in the context of the regulatory clash between the two economic giants and some of the coping strategies in light of regulatory uncertainties affecting the feasibility of ongoing business relationships with Huawei.
On May 30, 2019, President Trump announced that “the United States will impose a 5% Tariff on all goods…from Mexico...” Certain FAR clauses permit price adjustments for new duties imposed after award (e.g., FAR 52.229-3) or if specified contingencies occur (see FAR 16.203-1(a)).
On May 14, 2019, the Defense Contract Audit Agency (DCAA) issued Memorandum for Regional Directors (MRD) No. 19-PAC-002(R), revising DCAA’s “guidance” on identifying expressly unallowable costs. The revised guidance attempts to correct MRD Nos. 14-PAC-021(R) and 14-PAC-022(R) – MRDs that were inherently flawed as highlighted by recent Armed Services Board of Contract Appeals (ASBCA) decisions. The MRD includes an updated listing of Federal Acquisition Regulation (FAR) 31 and Defense Federal Acquisition Regulation Supplement (DFARS) 231 cost principles that DCAA continues to assert, incorrectly in many instances, meet the definition of expressly unallowable costs that are subject to penalties. Contractors should review DCAA’s updated list, as the release of the revised MRD may indicate that DCAA intends to refocus its audit efforts in the penalties arena.
The U.S. Supreme Court issued a unanimous decision in Cochise Consultancy, Inc., et al. v. United States ex rel. Hunt, addressing conflicting decisions on the False Claims Act statute of limitations and expanding the time allowed for private party relators to file whistleblower lawsuits. The decision increases the risk that government contractors may be subject to qui tam claims brought as many as ten years after the alleged violation, including by relators who may have chosen not to act on their own knowledge, provided that the relator can prove that government agent had or should have had knowledge of the alleged false claim.
NEW ATTORNEY ANNOUNCMENT: Vincent Li has joined Smith Pachter McWhorter’s White Collar Practice Group
SPM EVENT: On Tuesday, May 28, 2019 SPM Member Armani Vadiee and Todd M. Garland will present at the National Contract Management Association, Washington DC chapter event regarding price/cost realism evaluations and preparing successful proposals.
LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits
LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community
In two articles, John S. Pachter and Todd M. Garland discuss recent False Claims Act trends.
LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects
Smith Pachter McWhorter PLC is pleased to present the 2019 edition of its False Claims Act Practice Guide